Tech Industry + Transfer Pricing: Unique Challenges and Opportunities

Technology has rapidly permeated through everyday life, and will continue to do so at a rapid rate. What will this mean for transfer pricing?

The division and distinction of value creation will likely be affected, altering expectations on profit for each affiliate. United efforts around taxation of the digital economy continue to play out, and where it ends remains to be seen. COVID-19 disruptions present both transfer pricing complications and opportunities in the technology and intellectual property (“IP”) space. We present 6 key action steps for tech companies to take today that address transfer pricing challenges and capitalizes on current unique opportunities:

• Revisit Location of Tech Developer/Owner Since Favorable Time for IP Valuations
• Delineate Company that Owns/Develops Tech vs Company that Provides R&D Services
• Understand Risks and Uncertainties of E-Commerce and Taxing the Digital Economy
• Streamline Cash Flow Management via Global Centralized Strategy
• Quantify + Adjust Now for FY2020 Transfer Pricing Compliance
• Reduce Risk with Current Transfer Pricing Study and Intercompany Legal Agreements

Technology is Changing the Game for Transfer Pricing

Increasingly, technology and software developed by multinational enterprises (“MNEs”) is becoming widespread on a global basis, in developed and developing economies alike. As technology expands into the future, some business functions that are traditionally performed by humans may soon be replaced with artificial intelligence (“AI”), software or machines. This substitution of human functions with technological functions creates new and complex challenges pertaining to transfer pricing and the value creation of those functions.

The significant profit potential of successful technology companies foster a need for MNEs to establish efficient transfer pricing policies. As relatively larger operating profits will ultimately be earned within the one country hosting the MNE affiliate that owns and develops the IP, tax authorities in the other countries want to ensure they are getting their fair share of the global profit pie. This is especially the case in countries where an affiliate provides research and development (“R&D”) services to the IP owner. To avoid such an issue, MNEs should have clearly defined transfer pricing studies reflecting arm’s length pricing between those affiliates. The service provider must always be paid by the IP owner for R&D services. This compensation must include a profit element, typically calculated as a markup on costs for providing those services. There is no such thing as a cost center in the world of transfer pricing, where tax authorities expect MNEs to operate as total strangers rather than related parties.

The Complexities of Taxing Digital Economy

A transfer pricing analysis ensures that each affiliate of a global organization would be compensated at market rate for its relative contribution. “Economic substance” is essential to justify allocation of income across various entities contributing to the global organization. Historically, there would need to be actual people there performing a critical function. This is changing with the increasing use of AI and the digitalization of the economy. What if the company now only needs cloud-based software instead of an actual person for specific activities? Could AI or automated software be valid support for this critical “economic substance” and thus justify allocation of income into that location where it exists? There is much controversy over how to assess functions and risks, and thus value the contributions and allocate income when the intercompany activity is tech or data-driven, coming from metal rather than human form.

Under the old paradigm of “no people, no substance,” businesses would not earn a return, but that is certainly no longer the case, especially for tech-driven companies. Through increased reliance on AI, value-added services may now be performed by machines that are replacing the value-added services that were performed by humans. The entity legally owning the technology should thus be earning an arm’s length profit. The replacement of people with AI would not necessarily redefine economic substance, however it would reframe how economic substance is viewed. AI can produce significant value via analytical intuition and should be compensated for their contributions and value accordingly.

COVID-19 Impact on Tech: Revisit Transfer Pricing, Cashflow Management, + Valuations

Seemingly overnight, the COVID-19 pandemic turned the global economy on its head. During times of severe economic stress, MNEs are getting a chance to test their operational efficiencies. Many tech companies operating around the world discovered flaws in their cashflow management, realizing too late that their cash was trapped in affiliates in locations such as India and China, where it takes many months to transfer out. We tend to think of transfer pricing as a minimization tool, but it is also a very effective in developing a global cashflow management strategy where cash is diverted to key geographic markets via realigning the functions and risks of the entities, and supporting the flow of funds via economic substance.

Tech companies are struggling when their R&D or customer support service centers were solely located in one geographic location, creating complete shut-down of operations. Since the pandemic hit in waves, a more geographically diversified approach to these critical services would have mitigated the damages.

Along with the structure and function changes related to cashflow and service centers, there are issues and opportunities with respect to the transfer and ownership of IP. Technology companies can reap the benefits of potentially lower valuations of IP due to lower interest rates and cashflow projections and possibly reduced exit taxes on IP relocation if they choose to transfer these assets sooner rather than later.

Recently completed valuation analyses and IP transfers to related parties may now need to be reexamined. The IRS expects a “true-up” for each of the first five years that IP is transferred to an affiliate, and the actual revenue must fall within 80% to 120% of the projections used for the valuation at the time of transfer .

6 Key Transfer Pricing Steps for Tech Companies to Take Today

Tech companies should always have a pulse on where they stand in relation to these transfer pricing considerations, as they are of particular interest to tax authorities. This is especially important during times of economic turmoil that could shed light on potential weaknesses that could pivot into strategic opportunities.

• Revisit Location of Tech Developer/Owner Since Favorable Time for IP Valuations. Technology companies should give more serious consideration to any thought of transferring IP from one company to another. As interest rates are lower and future cashflow projections related to the IP are likely less optimistic, this would presumably lead to lower valuations of that IP, and possibly reduced exit taxes on the transfer to an affiliated company in a different tax jurisdiction. Consideration should also be given to the current government programs around the world focused on retaining and attracting tech companies. This includes a variety of financing, incentives, tax credit, and assistance programs designed to support the growth and relocation needs of businesses.
• Delineate Company that Owns/Develops Tech vs Company that Provides R&D Services. A hard line must be drawn to distinguish between the owner of the IP and the entity that is providing it with R&D services. The IP owner is the risk-taker, leads the development strategy, and is responsible for paying all development costs associated with that technology. The R&D service provider is a lower risk service-provider and compensated by the IP owner with a markup (or profit) over its costs for providing the service. In addition, the R&D Tax Credit, based on US software development, can provide further opportunities for taxpayers to lower their taxes payable.
• Understand Risks and Uncertainties of E-Commerce and Taxing the Digital Economy. With an increasingly tech driven world, tax authorities across the globe are now attempting to value and tax e-commerce sales involving customers in their local countries. This is creating more questions than answers so taxpayer’s should monitor.
• Streamline Cash Flow Management via Global Centralized Strategy. Times of economic turmoil shed light on the fact that cash is king, and CEO/CFOs should always have a handle on exactly where it is and how quickly they can access it. Transfer pricing is a critical tool to develop optimal cashflow strategies for multinationals, and tech companies in particular are typically structured in a way to benefit.
• Quantify + Adjust Now for FY2020 Transfer Pricing Compliance. It’s critical to capture the details happening in real time, documenting the story of the business and how current events are impacting operations. The goal is to quantify and adjust for those impacts during FY2020 transfer pricing documentation. Tax authorities will take the “business as usual” approach, so each company needs to tell its unique story of lower profits due to extraordinary economic circumstances and adjust the transfer pricing mechanism.
• Reduce Risk with Current Transfer Pricing Study and Intercompany Legal Agreements. Transfer pricing is not a one and done event; rather, it is prepared annually, contemporaneous to a company’s tax return filing. This both supports arm’s length pricing and provides protection against IRS penalties that could be 20% or 40% of any proposed income adjustment. Intercompany legal agreements must be clearly defined, describing services performed (or license fee paid, or funds exchanged) by related parties, as well as arm’s length pricing. Presenting transfer pricing support to the revenue agent allows them to “check the box” and hopefully move on during an audit situation.

Authors: Marina Gentile, MBA | [email protected] and Andrew DeSimone | [email protected]